Wallace v. Department of Sanitation

Appellate Division of the Supreme Court of New York

Wallace v. Department of Sanitation

303 A.D.2d 295, 756 N.Y.S.2d 571, 2003 N.Y. App. Div. LEXIS 3198

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 2003

StatusPublished

Cited by1 cases

This text of 303 A.D.2d 295 (Wallace v. Department of Sanitation) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wallace v. Department of Sanitation, 303 A.D.2d 295, 756 N.Y.S.2d 571, 2003 N.Y. App. Div. LEXIS 3198 (N.Y. Ct. App. 2003).

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Opinion

—Determination of respondent Department of Sanitation, dated May 18, 2000, finding petitioner guilty of specified misconduct and imposing the penalty of dismissal, unanimously confirmed, the petition denied, and the proceeding, brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Bruce Allen, J.], entered February 7, 2001), dismissed, without costs.

The determination was supported by substantial evidence [296]*296(Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]; see also People ex rel. Vega v Smith, 66 NY2d 130 [1985]) that petitioner was guilty of misconduct when he failed to respond to telephone calls, failed to report to the Department clinic, was absent without leave, and did not maintain a valid driver’s license, all in violation of Department of Sanitation rules. The Administrative Law Judge properly rejected petitioner’s various excuses and explanations. The penalty of dismissal was not disproportionate to the offenses and does not shock the conscience (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]), particularly since petitioner displayed a flagrant pattern of sick leave abuses.

We have considered and rejected petitioner’s remaining arguments. Concur — Buckley, P.J., Rosenberger, Lerner, Friedman and Gonzalez, JJ.

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—Determination of respondent Department of Sanitation, dated May 18, 2000, finding petitioner guilty of specified misconduct and imposing the penalty of dismissal, unanimously confirmed, the petition denied, and the proceeding, brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Bruce Allen, J.], entered February 7, 2001), dismissed, without costs.

The determination was supported by substantial evidence [296]*296(Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]; see also People ex rel. Vega v Smith, 66 NY2d 130 [1985]) that petitioner was guilty of misconduct when he failed to respond to telephone calls, failed to report to the Department clinic, was absent without leave, and did not maintain a valid driver’s license, all in violation of Department of Sanitation rules. The Administrative Law Judge properly rejected petitioner’s various excuses and explanations. The penalty of dismissal was not disproportionate to the offenses and does not shock the conscience (see Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]), particularly since petitioner displayed a flagrant pattern of sick leave abuses.

We have considered and rejected petitioner’s remaining arguments. Concur — Buckley, P.J., Rosenberger, Lerner, Friedman and Gonzalez, JJ.

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Bluebook (online)

303 A.D.2d 295, 756 N.Y.S.2d 571, 2003 N.Y. App. Div. LEXIS 3198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-department-of-sanitation-nyappdiv-2003.

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